ERISA Document Request

One of the most common types of health insurance claims personal injury attorneys deal with are ERISA Self-Funded Plans. ERISA Self-Funded Plans are preemptive of any state laws & state common fund doctrines and operate under the language in their member’s health plan’s contract. This argument is made by every third party claims administrator and subrogation recovery vendor, usually accompanied with a memorandum referencing US Airways v. McCutchen (2013) 133 S. Ct. 1537. All negotiations start out with THE HEALTH PLAN IS ENTITLED TO BE REIMBURSED 100% OF THEIR CLAIM. This argument causes headaches, difficulty settling cases, and managing a client’s expectation of recovery, especially in cases where there are limited settlement funds available.

The goal of this blog is to equip personal injuries attorneys with a strategy that will assist them in obtaining reductions from ERISA Self-Funded plans by using the ERISA Statute, 29 U.S.C. § 1024(b)(4), in their favor.

ERISA Document Request – 29 U.S.C. § 1024(b)(4)

  • Under 29 U.S.C. § 1024(b)(4) Any plan administrator shall, upon written request of any participant or beneficiary, furnish a copy of the following documentation:
    • A copy of the latest Summary Plan Description (SPD);
    • A copy Master Plan Documentation (MPD), the actual plan or contract;
    • The latest Summary Annual Report (if any);
    • The applicable Collective Bargaining Agreement (if any);
    • The Trust Agreement, contract or other instruments under which the plan is established or operated (if any);
  • Failure to comply with this request within 30 days will result in a $110.00 per day penalty under 29 U.S.C. § 1132 (c) (1) (B).

The ERISA document request should be sent out ASAP after determining you are dealing with an ERISA plan. The plan administrator has 30 days to comply with request and will incur a penalty for every day they are late in responding. The sooner you get a request out the larger the penalty.

Who to send the Request to:

An important factor to consider is sending this request directly to the Plan Administrator.

  • Who is the Plan Administrator?
    • Usually the employer or the health plan’s group.
  • Where do I find their contact information?
    • ASK recovery vendor.
    • Look under plan administrator information in the SPD.
    • Search the Department of Labor website for the Form 5500. This will obtain the correct plan administrators contact information. (Make sure you verify the correct year of form 5500.)
    • Send a letter via certified mail so you can confirm the receipt by the plan administrator.
    • Make sure it is sent to the correct address.

The Subrogation/Recovery Vendor or Third-Party Claims Administrator IS NOT THE PLAN ADMINISTRATOR.

Obtain ALL Documents

It is not an easy task for the Plan Administrator to send all the documents required under the ERISA request. Most plans will have their recovery vendors take care of the request for them. Vendors and Plan Administrator’s will provide a few of the documents under 29 U.S.C. § 1024(b)(4) but often fail to provide ALL DOCUMENTS.

Commonly you will get and Summary Plan Description and itemization of the claims.

  • Accept the documents provided but also DEMAND:
    • The Master Plan document. (Most plans do not have easy access to this document)
    • All applicable Form 5500.
  • Do not say you are satisfied with the request until all documents have been provided, or at least a valid reason why they are not able to provide the document. (Document doesn’t exist, etc.)

Enforce the Penalty

The reason it is important to request and obtain all the documents is to help enforce the penalty fees under the statute. It is not easy for the plan administrator to obtain all the documents.

  • Failure to comply with this request within 30 days will result in a $110.00 per day penalty under 29 U.S.C. § 1132 (c) (1) (B).
    • If you send the request via certified mail – you will have proof that the document request was received and can use this to your advantage.
    • If the request is sent out at the beginning of the file – THE BIGGER THE PENALTIES ARE AT THE END, if the plan administer does not comply.
  • To enforce the penalty fee under the statute litigation would have to take place – use this penalty as a bargaining chip to increase the reduction on the lien.

At Zipliens our team of resolution experts have the knowledge and experience to assist your firm with reducing ERISA Self-Funded claims. We can take away the headaches and most importantly SAVE YOU TIME in taking all the necessary steps to ensure your client is getting the best possible reduction on all their ERISA health plans. 

Interested in learning more about outsourcing your liens? Let’s talk!

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